Burke v. Kenny

Decided: December 12, 1949.

FRANCIS X. BURKE, PLAINTIFF,v.JOHN V. KENNY, DONALD SPENCE, LOUIS MESSANO, CHARLES WITKOWSKI, JAMES F. MURRAY, INDIVIDUALLY AND AS THE BOARD OF COMMISSIONERS OF THE CITY OF JERSEY CITY, JAMES A. TUMULTY AND CITY OF JERSEY CITY, A MUNICIPAL CORPORATION, DEFENDANTS

Francis X. Burke, in these proceedings, seeks a judgment "that plaintiff is the lawfully appointed and functioning City Clerk of the City of Jersey City and that the appointment of the defendant, James A. Tumulty, is illegal and void, and further seeks a judgment of this court that plaintiff is entitled to receive the salary and emoluments of the office from the 17th day of May, 1949, and to be restored to the possession and custody of the office of City Clerk to exercise the functions and duties thereof."

It appears that on June 17, 1947, the board of commissioners of the City of Jersey City adopted a resolution, the pertinent part of which follows:

"Resolved, That Francis X. Burke be and he hereby is appointed City Clerk of the City of Jersey City at an annual salary of Seven Thousand Five Hundred Dollars ($7,500), payable in equal semimonthly installments, said appointment to take effect immediately;"

Plaintiff immediately entered into his duties and continued to serve until May 17, 1949, when at the organization meeting

of the board of commissioners elected for Jersey City on May 10, 1949, a resolution was adopted appointing James A. Tumulty as clerk and the said Tumulty is now occupying that office to the exclusion of the plaintiff. Plaintiff is an honorably discharged veteran of World War II. No charges were preferred against him and consequently he was not removed from office for cause after a hearing.

The defendants have filed an answer denying plaintiff's right to the office of clerk and the matter is now before the court on plaintiff's motion for a summary judgment.

Plaintiff contends that, because he was not appointed for a definite term, his term of office was coterminus with that of the appointing board and, therefore, by virtue of the 1942 amendment to the Veterans' Tenure Act (R.S. 38:16-1, as amended by P.L. 1942, c. 83) he is entitled to serve as clerk until he shall be removed "for good cause shown after a fair and impartial hearing." In support of his contention, plaintiff relies upon Fox v. Board of Education of Newark , 129 N.J.L. 349 (Sup. Ct. 1943); affirmed, 130 N.J.L. 531 (E. & A. 1943).

R.S. 38:16-1 as amended by P.L. 1942, c. 83, reads as follows:

"No person now holding any employment, position or office under the government of this State, or the government of any county or municipality, including any person employed by a school board or board of education, or who may hereafter be appointed to any such employment, office or position, whose term of employment, office or position is not now fixed by law, and receiving a salary from such State, county or municipality, including any person employed by a school board or board of education, who has served as a soldier, sailor, marine or nurse, in any war of the United States, or in the New Jersey State militia during the period of the World War, and has been honorably discharged from the service of the United States or from such militia, prior to or during such employment in or occupancy of such position or office, shall be removed from such employment, position or office, except for good cause shown after a fair and impartial hearing, but such person shall hold his employment, position or office during good behavior, and shall not be removed for political reasons.

"For the purposes of this section no term of office, position or employment of any person shall be deemed to be fixed by law or coterminus with that of the ...

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